Opinion
B160663.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN WILLIAMS, Defendant and Appellant.
Valencia & Wong and Robert L. Valencia, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant, Benjamin Williams, appeals from the judgment entered following his conviction, by jury trial, for robbery (3 counts), unlawful taking of a vehicle, and unlawful flight from police, with firearm use, prior prison term, and prior serious felony conviction findings (Pen. Code, §§ 211, 12022.5, 12022.53, 667.5, 667, subds. (a)-(i); Veh. Code, §§ 10851, 2800.1). Sentenced to a state prison term of 95 years to life, he contends there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On June 29, 2001, Randolf Mermell and Jose Chaparro were at the office of Mermells video production company, Turning Point Productions, in Culver City. Defendant Williams walked into the office. When Mermell asked if he needed help, Williams pulled a gun out of a briefcase he was holding, and he ordered the two men to face the wall. Williams took Mermells cash and watch, and ordered him to tie up Chaparro with computer cables.
Just then, Floyd Elias, who worked for Sparkletts, the water company, arrived to make a delivery at Mermells office. Elias did not notice the robbery-in-progress. He took the empty bottle off the cooler and put it on the floor. "At that point someone told me: `Hey, check this out. [¶] I ignored them. I continued with my business, as far as putting the bottle on the cooler. [¶] I took a receipt out of my pocket. I put it on the counter. I filled it out. And as I turned around, [Williams] told me: `Hey, check this out. This is not your lucky day. [¶] He pulled a gun out and stuck it in my chest." Williams robbed Elias of cash, took some Columbian pesos and perhaps a pair of sunglasses from Chaparros backpack, and took some of Mermells video equipment.
When Williams left, he took Mermells Chevy Blazer. Culver City Police Officer Mark Repucci and his partner spotted the Blazer and pulled up behind it. Williams began driving erratically, speeding and changing lanes without signaling. The officers activated their lights and siren. Williams ran a red light, abandoned the Blazer and fled on foot. He eluded the officers, but a police dog later found him hiding in an abandoned house.
Mermell and Chaparro identified Williams at an in-field showup. Williamss fingerprints were found on a letter in Mermells office. Inside the abandoned Blazer, police found some of the things Williams had taken from the victims, as well as Williamss briefcase.
CONTENTIONS
1. The trial court erred by not adequately sanctioning a prosecution discovery violation.
2. The trial court erroneously believed it had to impose a consecutive sentence for the robbery of Elias.
3. Williamss sentence constituted cruel and unusual punishment.
4. The trial court made two sentencing errors involving prior convictions.
DISCUSSION
1. Discovery violation sanction was proper.
Williams contends the trial court erred by imposing an inadequate sanction in response to a prosecution discovery violation. This claim is meritless.
Not until trial was underway did the prosecutor turn over a forensic report indicating Williamss briefcase had been found in the abandoned Chevy Blazer. The investigating police officer on the case told the trial court he was at fault for not having realized the report had not been given to the defense. The trial court found this constituted a discovery violation, but denied Williamss mistrial motion and his alternate request to exclude the evidence, ruling instead that it would sanction the prosecution by giving CALJIC No. 2.28. Williams claims the trial court erred by imposing this lesser sanction.
The trial court instructed: "The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of truth, save court time, and avoid any surprise which may arise during the course of the trial. Delay in disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may be consistent to rebut the non-complying partys evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. [& para;] In this case the People failed to timely disclose the following evidence: [¶] Information that the suspects briefcase was found in the Chevy Blazer. [¶] Although the Peoples failure to timely disclose that evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. The weight and significance of any delayed disclosure are matters for your consideration; however, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial, or subject matters already established by other credible evidence."
We discussed Californias statutory reciprocal discovery scheme in People v. Edwards (1993) 17 Cal.App.4th 1248, which involved "the propriety of a discovery sanction by which the trial court precluded Edwards from introducing evidence relative to [his claim that, as the victims business partner, he could not be guilty of burglarizing the victims apartment to recover certain property]. We evaluate this sanction in light of Californias reciprocal discovery statute (Pen. Code, §§ 1054-1054.7) and United States Supreme Court cases which permit a preclusion sanction where an accused intentionally violates a discovery order so as to gain a tactical advantage at trial. We conclude such a sanction may be imposed if (1) both the intentional violation of the discovery order and the improper intent are shown on the record and, (2) all other less restrictive sanctions which would achieve the purposes of discovery have been exhausted." (Id. at pp. 1252-1253, see also People v. Jenkins (2000) 22 Cal.4th 900, 951-952 ["[D]efendant fails to support his contention that the trial court was required to impose the sanctions of dismissal or exclusion of evidence, or at least to impose a special jury instruction, because the prosecution allegedly had committed a willful violation of a discovery order. The cases cited by defendant recognize that courts have broad discretion in determining the appropriate sanction for discovery abuse, and recognize that sanctions ranging from dismissal to the giving of special jury instructions may be required in order to ensure that the defendant receives a fair trial, particularly when potentially favorable evidence has been suppressed."].)
We ultimately determined the trial court in Edwards had erred because it failed to make "a factual finding as to what it believed had occurred or ask Edwards to explain the circumstances under which the [partnership] agreement had been lost. Where the failure to comply with a discovery order is susceptible of contrary inferences on the issue of willfulness, and no attempt is made by the trial court to establish the facts underlying the violation, imposition of a preclusion sanction is an abuse of discretion. [¶] Further, Edwards would have enjoyed a tactical advantage at trial only if he willfully had refused to produce the agreement . . . . However, in none of the alternate explanations for the failure to produce the agreement did Edwards obtain any tactical advantage at trial. [¶] In sum, the preclusion sanction was not supported by a showing of willful and deliberate discovery abuse calculated to obtain a tactical advantage at trial." (People v. Edwards , supra, 17 Cal.App.4th at pp. 1263-1264, italics partially added.)
Precisely the same is true of the case at bar. There was no showing the prosecutions failure to disclose had been willful. Williams dismisses the investigating officers explanation of what happened by saying, "The prosecutions strategy was paper thin. It acted willfully in concealing the evidence until after trial had commenced and the defense had presented an opening statement." But this is mere speculation. It is contradicted both by the record and by the trial courts express finding the failure to disclose had not been willful.
Nor is there any evidence the non-disclosure was calculated to obtain a tactical advantage at trial. Williams complains the prosecution was able "to use evidence that appellants briefcase was found in the victims stolen car, despite the fact that appellant was allowed to give an opening statement outlining a defense that was obliterated by this evidence." Defense counsels opening statement argued the victims identification of Williams was mistaken because their observations had been made under great stress at the point of a gun, and that this mistake would be demonstrated by the fact that not all of the property the victims claimed had been taken was recovered. But this defense was obliterated by the evidence that Officer Repucci identified Williams driving the Blazer and, most conclusively, by the fact Williamss fingerprints were found on a envelope in Mermells office. The briefcase evidence turned out to be mere icing on the cake.
Defense counsel argued, "You will be called upon to ask: Where is all of the property that Mr. Mermell claims to have lost? Mr. Elias claims to have lost, and Mr. Chaparro claims to have lost?"
2. Consecutive sentence on count 3 was proper.
Williams contends the trial court committed sentencing error by not considering a possible concurrent term on count 3. This claim is meritless.
Williams argues the trial court did not understand it had discretion, under the Three Strikes Law, to impose a concurrent term on count 3 because the underlying crimes occurred on the same occasion and involved the same set of operative facts. It is true the trial court had discretion to impose a concurrent term on count 3, but it is also true the trial court understood it had this discretion. The record clearly demonstrates the trial court considered whether concurrent or consecutive sentencing was appropriate, and determined a concurrent term was appropriate for count 2, but that a consecutive term was appropriate for count 3.
Under the Three Strikes law (§ 667, subd. (c)(6)), consecutive sentences for each current felony conviction are mandatory if the current offenses were not committed on the same occasion and did not arise from the same set of operative facts. If the current felony offenses either were committed on the same occasion or did arise from the same set of operative facts, then the trial court has discretion to impose consecutive sentences. (People v. Hendrix (1997) 16 Cal.4th 508, 512-513; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1140-1141.)
Defense counsel began her sentencing argument by "asking the court to exercise discretion and not impose consecutive sentences on the strike convictions." She argued "the courts within her sound discretion to not impose consecutive sentences because of the fact that this robbery occurred at the same location and involved — while it involved three separate victims, it is basically the same activity." The prosecutor responded that a concurrent term might be reasonable on count 2, but not on count 3.
The trial court agreed with the prosecutor, saying a concurrent term made sense with regard to count 2 because "it started out as one robbery, two victims," and "an argument can be made for the fact that he encountered two people at the same time." But as for count 3, the trial court reasoned: "I dont buy the argument [for concurrent terms] when it comes to Mr. Elias, the Sparkletts water man. When I heard the testimony, both from the first two victims and then from Mr. Elias, from all the testimony I heard, he could have walked in and out of there undetected. It was your client who made a move toward him. The man went simply into the kitchen, left the water, and was in the process of leaving when he was invited to, quote, join the party. [¶] And he suffered greatly at the hands of your client. He barely could get through his testimony without breaking down. [¶] So with respect to counts 1 and 2, I find sufficient facts to sentence . . . concurrently. [¶] But I . . . find that count 3, which involved a separate unnecessary threat and act of violence toward a totally innocent bystander, to be a separate act. I find that to be a separate act. I do not find that to warrant concurrent sentencing."
As the foregoing makes clear, the trial court understood it had discretion to impose a concurrent term on count 3, but rejected that option. There was no error.
3. Williamss sentence did not constitute cruel and unusual punishment.
Williams contends his sentence of 95 years to life amounted to cruel and unusual punishment under both the California and the United States constitutions. He argues the sentence is disproportionate to the nature of his offenses and the degree of his culpability, and excessive when compared to the punishment imposed for more serious offenses. (See People v. Dillon (1983) 34 Cal.3d 441, 477-482; In re Lynch (1972) 8 Cal.3d 410, 423-424.) This claim is meritless.
Our Supreme Court has emphasized "the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.] While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned `unless their unconstitutionality clearly, positively, and unmistakably appears. [Citation.]" (People v. Wingo (1975) 14 Cal.3d 169, 174, fn. omitted.)
The length of the sentence does not alone warrant relief. (See Harmelin v. Michigan (1991) 501 U.S. 957 [mandatory sentence of life without possibility of parole for possessing 650 grams of cocaine did not violate Eighth Amendment].) Californias Three Strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (Ewing v. California (2003) 123 S.Ct. 1179, 1187-1190 .) The fact Williamss sentence is, given his age, effectively one for life without possibility of parole does not render it unconstitutional. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [sentence of 115 years plus 444 years to life not unconstitutional]; People v. Ayon (1996) 46 Cal.App.4th 385, 396, disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 [sentence of 240 years to life not unconstitutional].) Calling him a "poster child for the Three-Strikes law," the trial court noted Williams had previously been convicted of four robberies, some involving firearms, and that he had committed the current offenses while he was still on parole. Williamss sentence does not constitute cruel and unusual punishment.
4. Two sentencing errors must be corrected.
Williams contends the trial court made two errors in sentencing. The People properly agree the errors were made and, accordingly, we will order them corrected.
First, the trial court erred by imposing two five-year prior felony conviction enhancements for a 1993 case (VA016826) because the two robbery convictions in that case were not the result of charges brought and tried separately, as required by section 667, subdivision (a)(1). (See In re Harris (1989) 49 Cal.3d 131, 136.) Consequently, we will order one of the five-year prior serious felony conviction enhancements stricken. Second, the trial court erred by imposing both a one-year prior prison term enhancement (§ 667.5) and a five-year prior serious felony enhancement (§ 667, subd. (a)) based on the same underlying prior conviction, and therefore the one-year enhancement must be stricken. (See People v. Jones (1993) 5 Cal.4th 1142, 1153.)
DISPOSITION
The judgment is modified by striking one of the five-year prior serious felony conviction enhancements and one of the one-year prior prison term enhancements, in accordance with this opinion. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections.
We concur: KITCHING, J. and ALDRICH, J.